The request for determination of prevailing wage on Form 9141 is

usually the first step in the PERM process.  The PERM Rule

permits, however, the commencement of recruitment before or after

filing and receiving a prevailing wage determination from the

Department of Labor (DOL). Each method has itswn advantages and

disadvantages. In either case, there is a maximum of 180 days to

begin and complete recruitment before filing the PERM

application. 

If the employer begins recruitment first, the PERM application

must be filed before the end of the prevailing wage validity

period. If the employer requests the prevailing wage first, the

PERM application must be begun before the prevailing wage period

ends.

A request for wage determination before recruitment provides the

certainty of a pre-approved wage level and occupational code

designation before recruitment commences, thus eliminating

potential errors in advertising the wrong job and wages.

Conversely, if recruitment begins first, the entire PERM

application may be expedited without waiting many months for the

issuance of a prevailing wage, but the employer cannot be sure that

the wage offer and occupational code are correct.

Although there is a high level of dissatisfaction with DOL

determinations, wage calculations are a daunting task for the DOL

which has reduced all possible occupations into about one thousand

generic SOC codes (Specific Occupational Codes). Moreover, the

Bureau of Labor Statistics has to provide constantly changing to

the Prevailing Wage Unit to determine wages for specific job offers

based on employers' job descriptions and requirements.

Combinations of job duties, supervision, travel requirements,

special skills and languages, years of experience, education and

training, work force hierarchy, and level of responsibility are

common factors which must be applied to determine the most

appropriate wage for each job.

There are currently four wage for each job, varying from entry

level to fully independent positions. The language used to describe

these levels is very generalized and can lead reasonable persons to

reach different, rather subjective conclusions.

Although the DOL provides wage determinations based on official

statistics, employers are free to provide their own wage level

surveys – whether purchased from third parties or conducted

by employers themselves. Purchased surveys often fail due to their

inability to be used for widely varying job offers, but if properly

conducted in accordance with the regulations, employer-conducted

surveys may be successfully.

Employers may decide to begin recruitment before or after

obtaining prevailing wage determinations, but in either case

employers should begin by analyzing the entire PERM Form instead of

expediting preparation of the prevailing wage form 9141. The latter

contemplates a more generalized wage determination which does not

necessarily take into consideration all the conditions and

requirements for specific job offers that must be set forth and

filed with detail on the PERM Form 9089.

Procedures for wage determination are subject to political

pressure from groups who seek to protect American wages or to

diminish the number of foreign workers in the domestic workforce.

in U.S. government to eliminate the use of the lowest wage (Level

I) in petitions for temporary work visas, thereby raising the

challenge to bring foreign labor to the US. Other changes have been

recently proposed to link the two forms more closely together. New

wage regulations are currently pending, and we have written about

this in recent articles published on this site.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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